Breaking Dishes in the Credit Market

Parents have a sixth sense that warns us when a small child has been too quiet for too long. We call out “What are you doing?” and the little munchkin chirps back, “I’m helping you! I’m washing all the nice china!”

The next thing we hear is a loud crash.

So it goes with President Obama and the current Congress. They want to help, but they just can’t keep from breaking the dishes.

Take, for example, their latest effort to ensure that investors get adequate information from credit rating agencies. The legislative fix was included in the recently passed financial regulatory reform act.

Thanks to this particular reform, would-be buyers of the affected securities now receive no ratings at all. Oops.

The Securities and Exchange Commission has for a long time required asset-backed securities to have ratings from established agencies like Standard & Poor’s, Moody’s or Fitch. Asset-backed securities are instruments such as auto loans that are packaged into bonds before being sold to investors.

When the credit markets crashed, it became evident that many of these securities were riskier than the agencies had thought. The bonds lost their AAA ratings, and their values plummeted. Investors lost a lot of money.

The financial legislation that Obama signed on July 21 attempts to make the credit ratings agencies more accountable for their perceived failures. These firms now are exposed to claims of “expert liability,” the same legal risks facing accountants and other parties involved in bond sales.

The agencies’ response was quick and definitive. They stopped letting bond-sellers use their ratings. Rating agencies do not have crystal balls. Sooner or later a security they’d rated highly would be bound to default, leaving the raters on the hook under the new standard. The only way the agencies could ensure that they would never be wrong was to get out of the guessing game.

This was a potentially shattering development for the president and his fellow Democrats on Capitol Hill. One of the keys to getting the economy rolling again is to restore a healthy flow of credit, as voters are likely to remind Washington in November. Asset-backed securities are essential to the credit market because they allow lenders to quickly recoup most of their funds so they can lend again.

But SEC rules require the investment bankers who create such securities to have them rated, and the new law made this impossible by prompting the rating agencies to quit a game that now seemed rigged against them. The market for these asset-backed securities was immediately dead in the water.

As a result, the SEC temporarily suspended the rule requiring securities to be rated. This six-month suspension, in theory, is to allow credit rating agencies to implement policy changes to comply with the new law. In the meantime, securities will be sold without ratings.

What will be different in six months? Nothing, other than the upcoming elections will be history – though the SEC would never acknowledge that political considerations enter into its rulemaking.

Actually, one more thing will be different six months from now: we will have a new Congress. Maybe the incoming group of legislators will be mature enough to fix the new law so the ratings agencies will conclude it is safe to re-enter this line of business.

Or the SEC might just let the marketplace decide whether it needs ratings at all. If the asset-backed securities market can function during the next six months without ratings, then the original SEC requirement will be exposed as having been pointless, and the new liability standard will stand as nothing more than an attempt to give unhappy investors one more deep pocket to sue.

It’s pretty upsetting when valuable things get broken, and it’s easy to get mad if you have repeatedly warned your little tyke to stay out of the china closet. But we must be patient with little children, inexperienced presidents and congressional Democrats. They are only trying to help.

About Larry M. Elkin 525 Articles

Affiliation: Palisades Hudson Financial Group

Larry M. Elkin, CPA, CFP®, has provided personal financial and tax counseling to a sophisticated client base since 1986. After six years with Arthur Andersen, where he was a senior manager for personal financial planning and family wealth planning, he founded his own firm in Hastings on Hudson, New York in 1992. That firm grew steadily and became the Palisades Hudson organization, which moved to Scarsdale, New York in 2002. The firm expanded to Fort Lauderdale, Florida, in 2005, and to Atlanta, Georgia, in 2008.

Larry received his B.A. in journalism from the University of Montana in 1978, and his M.B.A. in accounting from New York University in 1986. Larry was a reporter and editor for The Associated Press from 1978 to 1986. He covered government, business and legal affairs for the wire service, with assignments in Helena, Montana; Albany, New York; Washington, D.C.; and New York City’s federal courts in Brooklyn and Manhattan.

Larry established the organization’s investment advisory business, which now manages more than $800 million, in 1997. As president of Palisades Hudson, Larry maintains individual professional relationships with many of the firm’s clients, who reside in more than 25 states from Maine to California as well as in several foreign countries. He is the author of Financial Self-Defense for Unmarried Couples (Currency Doubleday, 1995), which was the first comprehensive financial planning guide for unmarried couples. He also is the editor and publisher of Sentinel, a quarterly newsletter on personal financial planning.

Larry has written many Sentinel articles, including several that anticipated future events. In “The Economic Case Against Tobacco Stocks” (February 1995), he forecast that litigation losses would eventually undermine cigarette manufacturers’ financial position. He concluded in “Is This the Beginning Of The End?” (May 1998) that there was a better-than-even chance that estate taxes would be repealed by 2010, three years before Congress enacted legislation to repeal the tax in 2010. In “IRS Takes A Shot At Split-Dollar Life” (June 1996), Larry predicted that the IRS would be able to treat split dollar arrangements as below-market loans, which came to pass with new rules issued by the Service in 2001 and 2002.

More recently, Larry has addressed the causes and consequences of the “Panic of 2008″ in his Sentinel articles. In “Have We Learned Our Lending Lesson At Last” (October 2007) and “Mortgage Lending Lessons Remain Unlearned” (October 2008), Larry questioned whether or not America has learned any lessons from the savings and loan crisis of the 1980s. In addition, he offered some practical changes that should have been made to amend the situation. In “Take Advantage Of The Panic Of 2008” (January 2009), Larry offered ways to capitalize on the wealth of opportunity that the panic presented.

Larry served as president of the Estate Planning Council of New York City, Inc., in 2005-2006. In 2009 the Council presented Larry with its first-ever Lifetime Achievement Award, citing his service to the organization and “his tireless efforts in promoting our industry by word and by personal example as a consummate estate planning professional.” He is regularly interviewed by national and regional publications, and has made nearly 100 radio and television appearances.

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